You ask whether an unincorporated association insurance carrier
organized under the Texas Lloyd's Plan, Insurance Code, article
18.01 et seq., can serve as a "corporate surety" in providing a
performance and a payment bond when required by article 5160.A,
V.T.C.S. We conclude not.

Article 5160.A provides as follows (emphasis added):

Any person or persons, firm, or corporation, hereinafter
referred to as "prime contractor," entering into a formal
contract in excess of $25,000 with this State, any department,
board or agency thereof; or any county of this State,
department, board or agency thereof; or any municipality of this
State, department, board or agency thereof; or any school
district in this State, common or independent, or subdivision
thereof; or any other governmental or quasi-governmental
authority whether specifically named herein or not, authorized
under any law of this State, general or local, to enter into
contractual agreements for the construction, alteration or repair
of any public building or the prosecution or completion of any
public work, shall be required before commencing such work to
execute to the aforementioned governmental authority or
authorities, as the case may be, the statutory bonds as
hereinafter prescribed, but no governmental authority may require
a bond if the contract does not exceed the sum of $25,000. Each
such bond shall be executed by a corporate surety or corporate
sureties duly authorized to do business in this State. In the
case of contracts of the State or a department, board, or agency
thereof, the aforesaid bonds shall be payable to the State and
shall be approved by the Attorney General as to form. In case of
all other contracts subject to this Act, the bonds shall be
payable to the governmental awarding authority concerned, and
shall be approved by it as to form. Any bond furnished by any
prime contractor in an attempted compliance with this Act shall
be treated and construed as in conformity with the requirements
of this Act as to rights created, limitations thereon, and
remedies provided.

(a) A Performance Bond in the amount of the contract
conditioned upon the faithful performance of the work in
accordance with the plans, specifications, and contract
documents. Said bond shall be soley for the protection of the
State or the governmental authority awarding the contract, as the
case may be.

(b) A Payment Bond, in the amount of the contract, solely for
the protection of all claimants supplying labor and material as
hereinafter defined, in the prosecution of the work provided for
in said contract, for the use of each such claimant.

By its terms, as set forth in the underscored sentence, article
5160.A requires a bond to be executed by a "corporate" surety.

Article 18.01 of the Insurance Code, however, provides as
follows (emphasis added):

Individuals, partnerships or associations of individuals,
hereby designated "underwriters," are authorized to make any
insurance, except life insurance, on the Lloyd's plan, by
executing articles of agreement expressing their purpose so to do
and complying with the requirements set forth in this chapter.

Article 18.03 of the Insurance Code delineates the meaning of
"any insurance" by providing (emphasis added):

The attorney shall file with the Board of Insurance
Commissioners a verified application for license setting forth
and accompanied by:

....

(c) The kinds of insurance to be effected, which kinds of
insurance may be as follows:

....

7. Fidelity and surety bonds insurance.

....

Thus, by its terms, the Insurance Code authorizes a Lloyd's
company to write "fidelity and surety bonds insurance."

Article 5160.A and the Insurance Code are in apparent conflict.
In the case of an apparent conflict between a general provision
and a special provision, the statutes must be read together and
harmonized if possible. Halsell v. Texas Water Commission, 380
S.W.2d 1, 15 (Tex.Civ.App.--Austin 1964, writ ref'd n.r.e.). In
doing so, the general provision is controlled or limited by the
special provision. See Trinity Universal Ins. Co. v. McLaughlin,
373 S.W.2d 66, 69 (Tex.Civ.App.--Austin), reh'g denied, 374
S.W.2d 350 (1963). As between article 5160.A and the Insurance
Code, the special requirement of a corporate surety therefore
controls or limits the general authorization of a Lloyd's company
to write fidelity and surety bond insurance. Put another way:
Although the legislature has authorized Lloyd's companies to
write fidelity and surety bond insurance, the legislature
requires a corporate surety when public work is concerned.

This conclusion is supported by the date of enactment of each
statute. The provision for Lloyd's companies to write "fidelity
and surety bond insurance" became law in 1921. Acts 1921, 37th
Leg., ch. 127, ss 1 & 3, at 238. The requirement that a
"corporate surety" stand behind both a performance bond and a
payment bond on behalf of a contractor doing public work became
law in 1959. Acts 1959, 56th Leg., ch. 93, s 1, at 155. The
legislature is presumed to have known when it required a
corporate surety that it had earlier authorized Lloyd's companies
to write fidelity and surety bond insurance. See Garner v.
Lumberton Ind. Sch. Dist., 430 S.W.2d 418, 423 (Tex.Civ.App.--Austin 1968, no writ). The legislature is also presumed to have
intended to use the word "corporate" for a purpose. See Cameron
v. Terrel & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Thus
we can only conclude that the special requirement of 1959 for a
corporate surety for public works controls over the general
authorization in 1921 for a Lloyd's company to write fidelity and
surety bond insurance. See State v. Easley, 404 S.W.2d 296, 300
(Tex.1966); Halsell v. Texas Water Commission, supra, 380 S.W.2d
at 15.

SUMMARY

The requirement in article 5160.A of a bond executed by a
"corporate surety" authorized to do business in Texas is not
satisfied by surety bond insurance issued by a Lloyd's company
authorized to do business in Texas.